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                                                                     TIER ONE EXECUTIVE EMPLOYMENT PLAN                In addition to the terms of your offer letter or executive employment letter (“Offer  Letter”) with Synchronoss Technologies, Inc., a Delaware corporation (the “Company”), the  employment of each Tier One Executive (“Executive”) shall be governed by the terms and conditions  set forth in this Tier One Executive Employment Plan (the “Plan”).     1.    Scope of Employment.   (a)   Position and Compensation.  Executive shall be employed by the Company in the  position and at the location provided in the Offer Letter and at the base salary and annual target  bonus percentage set forth in the Offer Letter.  Executive shall not be entitled to an incentive bonus  if Executive is not employed by the Company on the last day of the fiscal year for which such  bonus is payable.  Any bonus for a fiscal year shall be paid within 21⁄2 months after the close of  that fiscal year.  The determinations of the Company’s Board of Directors or its Compensation  Committee with respect to such bonus shall be final and binding.  The Offer Letter shall also  include any initial equity awards to be granted to the Executive, which shall be governed by the  respective equity award agreement of the Company.     (b)   Obligations to the Company.  During Employment, Executive (i) shall devote  substantially all of Executive’s full business efforts and time to the Company, (ii) shall not engage  in any other employment, consulting or other business activity that would create a conflict of  interest with the Company, (iii) shall not assist any person or entity in competing with the  Company or in preparing to compete with the Company, (iv) shall comply with the Company’s  policies and rules, as they may be in effect from time to time and (v) shall comply with the  Proprietary Information and Inventions Agreement.  This provision shall not restrict Executive’s  ability to sit on one non-profit board and, subject to review and written approval by the CEO,  Executive may request to sit on one corporate board.   (c)   No Conflicting Obligations.  Executive represents and warrants to the Company that he  is under no obligations or commitments, whether contractual or otherwise, that are inconsistent  with Executive’s obligations hereunder.  Executive represents and warrants that he will not use or  disclose, in connection with Executive’s Employment, any trade secrets or other proprietary  information or intellectual property in which Executive or any other person has any right, title or  interest and that Executive’s Employment will not infringe or violate the rights of any other person.    Executive represents and warrants to the Company that he has returned all property and   confidential information belonging to any prior employer.     (d)  Indemnification/D&O Insurance.  To the maximum extent permitted by applicable law   and the Company’s by-laws, the Company shall indemnify Executive for all acts and omissions   by him and any action on his part while acting in such capacity, and for losses that arise from   serving at the request of the Company or a subsidiary thereof as a director, officer, employee or   agent of another corporation, partnership, joint venture, trust, employee benefit plan or other                                                                  Effective Date: 3/24/2017                                          1  





 






 enterprise.  Executive shall be covered by directors’ and officers’ liability insurance on a basis no   less favorable than provided to directors and officers of the Company, including “tail” coverage.      2.    Paid Time Off and Employee Benefits.  During Executive’s Employment, Executive  shall be eligible for paid time off in accordance with the Company’s paid time off policy, as it may  be amended from time to time, with a minimum of 20 paid time off days per year (accruing for  each year on the first day of such year), and any United States Company-wide holidays; provided,  however, Executive shall not be entitled to carry over any paid time off days from year to year.   During Executive’s Employment, Executive shall be eligible to participate in the employee benefit  plans maintained by the Company, subject in each case to the terms and conditions of the plan in  question.   3.    Business Expenses.  During Executive’s Employment, Executive shall be authorized to  incur necessary and reasonable travel, entertainment and other business expenses in connection  with Executive’s duties hereunder.  The Company shall reimburse Executive for such expenses  upon presentation of an itemized account and appropriate supporting documentation, all in  accordance with the Company’s generally applicable policies.  Notwithstanding anything to the  contrary herein, except to the extent any expense or reimbursement provided hereunder does not  constitute a “deferral of compensation” within the meaning of Section 409A of the Code, (a) the  amount of expenses eligible for reimbursement provided to Executive during any calendar year  will not affect the amount of expenses eligible for reimbursement or in-kind benefits provided to  Executive in any other calendar year, (b) the reimbursements for expenses for which Executive is  entitled to be reimbursed shall be made on or before the last day of the calendar year following the  calendar year in which the applicable expense is incurred and (c) the right to payment or  reimbursement hereunder may not be liquidated or exchanged for any other benefit.     4.    Termination.   (a)   Termination of Employment.  The Company may terminate Executive’s Employment at  any time and for any reason (or no reason), and with or without Cause, by giving Executive 30  days’ advance notice in writing.  Executive may terminate Executive’s Employment by giving the  Company 30 days’ advance notice in writing.  The Company shall have the right at any time during  such 30-day period, to relieve Executive of Executive’s offices, duties and responsibilities and  place him on a paid leave-of-absence status, provided that during such notice period, Executive  shall remain a full-time employee of the Company and shall continue to receive Executive’s then  current salary compensation and other benefits as provided herein.  Executive’s Employment shall  terminate automatically in the event of Executive’s death.  The termination of Executive’s  Employment shall not limit or otherwise affect Executive’s obligations under Section 6.   (b)   Rights Upon Termination.  Upon Executive’s termination of Employment for any reason,  Executive shall be entitled to the compensation, benefits and reimbursements described in  Executive’s Offer Letter or hereunder for the period preceding the effective date of such  termination or otherwise accrued before such termination.  Upon the termination of Executive’s  Employment under certain circumstances, Executive may be entitled to additional severance pay  benefits as described in Section 6.  The payments hereunder shall fully discharge all  responsibilities of the Company to Executive.     (c)   Rights Upon Death.  If Executive’s Employment ends due to death, (A) Executive’s estate  shall be entitled to receive an amount equal to Executive’s target bonus for the fiscal year in which  Executive’s death occurred (or, if greater, the bonus amount determined based on the applicable                                          2  





 






 factors and actual performance for such fiscal year), prorated based on the number of days he was   employed by the Company during that fiscal year, and (B) all stock options, shares of restricted   stock (other than performance-related restricted stock), and other time-based equity awards   granted by the Company and held by Executive at the time of his death shall be fully vested.   All   amounts under this Section 4(c) shall be paid no later than the date regular employees are paid   their bonuses.      (d)   Rights Upon Permanent Disability.  If Executive’s Employment ends due to Permanent   Disability and a Separation occurs, (I) Executive shall be entitled to receive (i) an amount equal to   Executive’s Target Bonus for the fiscal year in which Executive’s Employment ended (or, if  reasonably ascertainable and greater, the bonus amount determined based on the applicable factors  and actual performance for such fiscal year), prorated based on the number of days he was  employed by the Company during that fiscal year, and (ii) a lump sum amount equal to the product  of (A) 24 and (B) the monthly amount the Company was paying on behalf of Executive and  Executive’s eligible dependents with respect to the Company’s health insurance plans in which  Executive and Executive’s eligible dependents were participants as of the date of Separation, and  (II) all stock options, shares of restricted stock (other than performance-related restricted stock)  and other time-based equity awards granted by the Company and held by Executive shall be fully  vested as of the date of Executive’s Separation.  The amounts payable under this Section 5(e) shall  be paid no later 60 days after Executive’s Separation.     5.    Termination Benefits.   (a)   Preconditions.  Any other provision of this Plan notwithstanding, Subsections (b) and (c)  below shall not apply unless Executive:   (i)   Has executed (or, with respect to Section 4(d), the executor or Executive’s estate has  executed) a general release of all claims Executive (or Executive’s executor or estate) may have  against the Company or persons affiliated with the Company (substantially in the form attached  hereto as Exhibit A) (the “Release”);   (ii)  Complies with Executive’s obligations under Section 6 below;   (iii) Has returned all property of the Company in Executive’s possession; and   (iv)  If requested by the Board, has resigned as a member of the Board and as a member of the  boards of directors of all subsidiaries of the Company, to the extent applicable.   Executive must execute and return the Release within the period of time set forth in the Release  (the “Release Deadline”).  The Release Deadline will in no event be later than 50 days after  Executive’s Separation.  If Executive fails to return the Release on or before the Release Deadline  or if Executive revokes the Release, then Executive will not be entitled to the benefits described  in this Section 5.     (b)   Severance Pay in the Absence of a Change in Control.  If, during Executive’s  employment with the Company and not at a time described in subsection (c) below, Executive  resigns Executive’s Employment for Good Reason and a Separation occurs, or the Company  terminates Executive’s Employment with the Company for a reason other than death, Cause or  Permanent Disability and a Separation occurs, then the Company shall pay Executive a lump sum  severance payment equal to (i) one and one-half times Executive’s Base Salary in effect at the time  of the termination of Employment and one and one-half times Executive’s average annual bonus                                         3  





 






based on the actual amounts received in the immediately preceding two years, and (ii) the product  of (A) 12 and (B) the monthly amount the Company was paying on behalf of Executive and  Executive’s eligible dependents with respect to the Company’s health insurance plans in which  Executive and Executive’s eligible dependents were participants as of the date of Separation.  In  the event that Executive Employment is terminated for a reason other than death, Cause or  Permanent Disability or Executive resigns Executive’s Employment for Good Reason under this  Subsection (b) within two years after commencement of employment with the Company, then in  lieu of using the average bonus received in the immediately preceding two years for the above  calculation, such calculation shall use Executive’s Target Bonus in the year of termination if such  termination under this Subsection (b) occurs in the first year of employment with the Company  and the actual bonus Executive received during the first year of employment with the Company if  such termination under this Subsection (b) occurs in the second year of employment with the  Company.  However, the amount of the severance payment under this Subsection (b) shall be  reduced by the amount of any severance pay or pay in lieu of notice that Executive receives from  the Company under a federal or state statute (including, without limitation, the Worker Adjustment  and Retraining Notification Act).     (c)   Severance Pay in Connection with a Change in Control.  If, during Executive’s  employment with the Company and within (i) 120 days prior to or (ii) 24 months following a  Change in Control, Executive is subject to an Involuntary Termination, then (i) the Company shall  pay Executive a lump sum severance payment equal to (x) two times Executive’s Base Salary in  effect at the time of the termination of Employment plus two times Executive’s average bonus  received in the immediately preceding two years, and (y) a lump sum amount equal to the product  of (A) 18 and (B) the monthly amount the Company was paying on behalf of Executive and  Executive’s eligible dependents with respect to the Company’s health insurance plans in which  Executive and Executive’s eligible dependents were participants as of the date of Separation and  (ii) all stock options, shares of restricted stock (other than performance-related restricted stock that  is tied to performance after the Change in Control), and other time-based equity awards) granted  by the Company and held by Executive shall be fully vested as of the date of the Involuntary  Termination.  In the event that Executive is subject to an Involuntary Termination under this  Subsection (c) within two years after commencement of employment with the Company, then in  lieu of using the average bonus received in the immediately preceding two years for the above  calculation, such calculation shall use Executive’s Target Bonus in the year of the Involuntary  Termination if such termination under this Subsection (c) occurs in the first year of employment  with the Company and the actual bonus Executive received during the first year of employment  with the Company if such termination under this Subsection (c) occurs in the second year of  employment with the Company.  However, the amount of the severance payment under this  Subsection (c) shall be reduced by the amount of any severance pay or pay in lieu of notice that  Executive receives from the Company under a federal or state statute (including, without  limitation, the Worker Adjustment and Retraining Notification Act).     (d)   Commencement of Severance Payments.  Payment of the severance pay provided for  hereunder will be made no later than the first regularly scheduled payroll date that occurs no later  than 50 days after Executive’s Separation, but only if Executive has complied with the release and  other preconditions set forth in Subsection (a) (to the extent applicable).  However, except as  provided in the next following sentence, if the 50-day period described in Section 5(a) spans two  calendar years, then the payment will be made on the first payroll date in the second calendar year  following expiration of the applicable revocation period.   In the event that Executive experiences  an Involuntary Termination immediately at or after a Change in Control, the Company shall work  with the surviving company to ensure that any payments due to Executive under subsection (c)                                        4  





 






 above be paid upon the closing of the Change in Control.  In addition, if at any time the parties   agree that a Good Reason arises after the Change in Control and severance is due to Executive   under subsection (c), the Company shall work with the surviving company to insure that any such   payments due to Executive are paid promptly after such Good Reason arises.      (e)   Section 409A.  This Plan shall be construed consistently with the intent that all payments   hereunder shall be exempt from the requirements of Section 409A of the Code by reason of the   “short-term” deferral exemption or a different exemption. Each payment made under this Plan   shall be treated as a separate payment and the right to a series of installment payments under this   Plan is to be treated as a right to a series of separate payments.  If the Company determines that   Executive is a “specified employee” under Section 409A(a)(2)(B)(i) of the Code at the time of   Executive’s Separation, then (i) payment of any “nonqualified deferred compensation” (within the   meaning of Section 409A) that is payable to Executive upon Separation shall be delayed until the   first business day following (A) expiration of the six-month period measured from Executive’s   Separation, or (B) the date of Executive’s death, and (ii) the installments that otherwise would   have been paid prior to such date will be paid in a lump sum when such payments commence.     6.    Protective Covenants.   (a)   Non–Competition.  As one of the Company’s executive and management personnel and  officer, Executive has acquired extensive and valuable knowledge and confidential information  concerning the business of the Company, including certain trade secrets the Company wishes to  protect. Executive further acknowledges that during Executive’s employment he will have access  to and knowledge of Proprietary Information.  To protect the Company’s Proprietary Information,  and in consideration of the terms of this Plan, Executive agrees that during Executive’s   employment with the Company and for a period of twelve (12) months after the termination of   Executive’s employment with the Company for any reason, whether hereunder or otherwise (the   “Restricted Period”), Executive will not without the Company’s approval (which shall not be   unreasonably withheld), directly or indirectly engage in (whether as an employee, consultant,   proprietor, partner, director or otherwise), have any ownership interest in, or participate in the   financing, operation, management or control of, any person, firm, corporation or business that   engages in a Restricted Business in a Restricted Territory.  It is agreed that ownership of (i) no   more than one percent (1%) of the outstanding voting stock of a publicly traded corporation or (ii)   any stock he presently owns shall not constitute a violation of this Section.    (b)   Non-Solicitation and Non-Servicing.  During Executive’s employment with the   Company and continuing for a period of twelve (12) months after termination of Executive’s   employment with the Company for any reason, whether under this Agreement or otherwise,   Executive shall not directly or indirectly, personally or through others,           (i)   attempt in any manner to solicit, persuade or induce any Client of the Company to         terminate, reduce or refrain from renewing or extending its contractual or other relationship         with the Company in regard to the purchase or licensing of products or services         manufactured, marketed, licensed or sold by the Company, or to become a Client of or        enter into any contractual or other relationship with Executive or any other individual,        person or entity in regard to the purchase or license of products or services similar or        identical to those manufactured, marketed or sold by the Company; or         (ii)  attempt in any manner to solicit, persuade or induce any individual, person or entity        which is, or at any time during Executive’s employment with the Company was, a supplier                                          5  





 






       of any product or service to the Company or vendor of the Company (whether as a         distributor, agent, employee or otherwise) to terminate, reduce or refrain from renewing or         extending Executive’s, Executive’s contractual or other relationship with the Company;         provided, however, this subparagraph (ii) shall not apply to any employee of the Company        who reports in to Executive’s organization, was recommended by Executive and had        worked with Executive at at least two prior organizations; or         (iii) render to or for any Client any services of the type rendered by the Company; or         (iv)  employ as an employee or retain as a consultant any person who is then, or at any        time during the preceding twelve months was, an employee of or consultant to the        Company (unless the Company had terminated the employment or engagement of such        employee or exclusive consultant prior to the time of the alleged prohibited conduct), or        persuade or attempt to persuade any employee of or consultant to the Company to leave        the employ of the Company or to breach any service arrangement with the Company.   (c)   Non-Disclosure.  Executive has entered into a Proprietary Information and Inventions  Agreement with the Company, which is incorporated herein by reference.   (d)   Reasonable.  Executive agrees and acknowledges that the time limitation on the  restrictions in this Section 6, combined with the geographic scope, is reasonable.  Executive also  acknowledges and agrees that this provision is reasonably necessary for the protection of  Proprietary Information, that through Executive’s employment he shall receive adequate  consideration for any loss of opportunity associated with the provisions herein, and that these  provisions provide a reasonable way of protecting the Company’s business value which will be  imparted to him.  If any restriction set forth in this Section 6 is found by any court of competent  jurisdiction to be unenforceable because it extends for too long a period of time or over too great  a range of activities or in too broad a geographic area, it shall be interpreted to extend only over  the maximum period of time, range of activities or geographic area as to which it may be  enforceable.   7.    Successors.   (a)   Company’s Successors.  This Plan shall be binding upon any successor (whether direct or  indirect and whether by purchase, lease, merger, consolidation, liquidation or otherwise) to all or  substantially all of the Company’s business and/or assets.  For all purposes hereunder, the term  “Company” shall include any successor to the Company’s business and/or assets which becomes  bound by this Plan.   (b)   Employee’s Successors.  This Plan and all rights of Executive hereunder shall inure to the  benefit of, and be enforceable by, Executive’s personal or legal representatives, executors,  administrators, successors, heirs, distributees, devisees and legatees.   8.    Taxes.   (a)   Withholding Taxes.  All payments made hereunder shall be subject to reduction to reflect  applicable withholding and payroll taxes or other deductions required to be withheld by law.     (b)   Tax Advice.  Executive is encouraged to obtain Executive’s own tax advice regarding  Executive’s compensation from the Company.  Executive agrees that the Company does not have  a duty to design its compensation policies in a manner that minimizes Executive’s tax liabilities,                                         6  





 






 and Executive shall not make any claim against the Company or the Board related to tax liabilities   arising from Executive’s compensation.     (c)   Parachute Taxes.  Notwithstanding anything in this Plan to the contrary, if it shall be  determined that any payment or distribution by the Company to or for the benefit of Executive,  whether paid or payable or distributed or distributable pursuant to the terms hereunder or otherwise  (“Total Payments”) to be made to Executive would otherwise exceed the amount (the “Safe Harbor  Amount”) that could be received by Executive without the imposition of an excise tax under  Section 4999 of Code, then the Total Payments shall be reduced to the Safe Harbor Amount 9f  (and only if) the Safe Harbor Amount (net of applicable taxes) is greater than the net amount  payable to Executive after taking into account any excise tax imposed under section 4999 of the  Code on the Total Payments.  All determinations to be made under this subparagraph (c) shall be  made by a public accounting firm selected by the Company before the date of the Change in  Control (the “Accounting Firm”).  In determining whether such Benefit Limit is exceeded, the  Accounting Firm shall make a reasonable determination of the value to be assigned to the  restrictive covenants in effect for Executive pursuant to Section 6 above, and the amount of  Executive’s potential parachute payment under Section 280G of the Code shall be reduced by the  value of those restrictive covenants and all other permissible adjustments to the extent consistent  with Section 280G of the Code and the regulations thereunder. To the extent a reduction to the  Total Payments is required to be made in accordance with this subparagraph (c), such reduction  and/or cancellation of acceleration of equity awards shall occur in the order that provides the  maximum economic benefit to Executive.  In the event that acceleration of equity awards is to be  reduced, such acceleration of vesting also shall be canceled in the order that provides the maximum  economic benefit to Executive.  Notwithstanding the foregoing, any reduction shall be made in a  manner consistent with the requirements of section 409A of the Code and where two economically  equivalent amounts are subject to reduction but payable at different times, such amounts shall be  reduced on a pro rata basis but not below zero.  All of the fees and expenses of the Accounting  Firm in performing the determinations referred to in this subparagraph (c) shall be borne solely by   the Company.   9.    Definitions.    (a)   Cause.  For all purposes under this Plan, “Cause” shall mean:     (i)   An intentional and unauthorized use or disclosure by Executive of the Company’s   confidential information or trade secrets, which use or disclosure causes material harm to the   Company;    (ii)  A material breach by Executive of any material agreement between Executive and the   Company;    (iii) A material failure by Executive to comply with the Company’s written policies or rules;    (iv)  Executive’s conviction of, indictment for or plea of “guilty” or “no contest” to, a felony   under the laws of the United States or any State thereof;    (v)   Executive’s gross negligence or willful misconduct which causes material harm to the   Company;    (vi)  A continued failure by Executive to perform reasonably assigned duties after receiving   written notification of such failure from the Board (other than by reason of Executive’s physical                                         7  





 






 or mental illness, incapacity or disability); or    (vii) A failure by Executive to cooperate in good faith with a governmental or internal   investigation of the Company or its directors, officers or employees, if the Company has requested   in writing Executive’s cooperation, and Executive has not cooperated in good faith within 5   business days.    With respect to subparagraphs (ii), (iii) or (vi), the Company shall not have the right to terminate  Executive for Cause if Executive cures the breach or failure within 30 days of the Company’s  written notice to Executive of such breach or failure.      (b)   Change in Control.  For all purposes under this Plan, “Change in Control” shall mean the   occurrence of:    (i)    The acquisition, by a person or persons acting as a group, of the Company's stock that,   together with other stock held by such person or group, constitutes more than 50% of the total   fair market value or total voting power of the Company;    (ii)    The acquisition, during a 12-month period ending on the date of the most recent   acquisition, by a person or persons acting as a group, of 30% or more of the total voting power   of the Company;   (iii)   The replacement of a majority of the members of the Board, during any 12-month   period, by directors whose appointment or election is not endorsed by a majority of the   members of the Board before the date of such appointment or election; or    (iv)  The acquisition, during a 12-month period ending on the date of the most recent   acquisition, by a person or persons acting as a group, of the Company's assets having a total   gross fair market value (determined without regard to any liabilities associated with such   assets) of 80% or more of the total gross fair market value of all of the assets of the Company   (determined without regard to any liabilities associated with such assets) immediately prior to   such acquisition or acquisitions.          Notwithstanding the foregoing, a Change in Control shall not be deemed to occur   unless such transaction also qualifies as an event under Treas. Reg. §1.409A-3(i)(5)(v) (change   in the ownership of a corporation), Treas. Reg. §1.409A-3(i)(5)(vi) (change in the effective  control of a corporation), or Treas. Reg. §1.409A-3(i)(5)(vii) (change in the ownership of a  substantial portion of a corporation's assets).   (c)   Client.  For all purposes under this Plan, “Client” shall mean (i) anyone who is a client of  the Company as of, or at any time during the one-year period immediately preceding, the  termination of Executive’s employment, but only if Executive had a direct relationship with,  supervisory responsibility for or otherwise were involved with such client during Executive’s  employment with the Company and (ii) any prospective client to whom the Company made a new  business presentation (or similar offering of services) at any time during the one-year period  immediately preceding, or six-month period immediately following, Executive’s employment  termination (but only if initial discussions between the Company and such prospective client  relating to the rendering of services occurred prior to the termination date, and only if Executive  participated in or supervised such presentation and/or its preparation or the discussions leading up  to it).                                            8  





 






(d)   Code.  For all purposes under this Plan, “Code” shall mean the Internal Revenue Code of  1986, as amended.    (e)   Company.  For all purposes under this Plan, “Company” shall include Synchronoss  Technologies, Inc. and all of its subsidiaries and affiliates.   (f)   Good Reason.  For all purposes under this Plan, “Good Reason” shall mean:    (i)   a material dimunition in Executive’s authorities, duties or responsibilities;   (ii)  a reduction in Executive’s base salary by more than 10% unless pursuant to a Company- wide salary reduction affecting all Executives proportionately;    (iii) relocation of Executive’s principal workplace that results in an increase to Executive’s  commute by more than 50 miles;   (iv)  a material reduction in the kind or level of incentive compensation or employee benefits to  which Executive is entitled immediately prior to such reduction with the result that Executive’s  overall compensation and benefits package is significantly reduced, unless such reduction occurs  solely as a result of a reduction in the kind or level of employee benefits of employees that applies  for all employees of the Company; or    (v)   a material breach by the Company of this Agreement.   A condition shall not be considered “Good Reason” unless Executive gives the Company written  notice of such condition within 90 days Executive has knowledge of such condition and the Company  fails to remedy such condition (or in  the case of (v) remedy such breach) within 30 days after  receiving Executive’s written notice.  In addition, Executive’s resignation must occur within 12  months after Executive has knowledge of such condition.   (g)   Involuntary Termination.  For all purposes under this Plan, “Involuntary Termination”  shall mean either (i) the Company terminates Executive’s Employment with the Company for a  reason other than death, Cause or Permanent Disability and a Separation occurs, or (ii) Executive  resigns Executive’s Employment for Good Reason and a Separation occurs.    (h)   Permanent Disability.  For all purposes under this Plan, “Permanent Disability” shall  mean, in the reasonable determination by the Compensation Committee, Executive’s inability to  perform the essential functions of Executive’s position, with or without reasonable  accommodation, for a period of at least 180 consecutive days because of a physical or mental  impairment.   (i)   Proprietary Information.  For all purposes under this Plan, “Proprietary Information”  shall mean any and all confidential and/or proprietary knowledge, data or information of the  Company.  By way of illustration but not limitation, Proprietary Information includes (i) trade  secrets, inventions, mask works, ideas, processes, formulas, source and object codes, data,  programs, other works of authorship, know-how, improvements, discoveries, developments,  designs and techniques; and (ii) information regarding plans for research, development, new  products, marketing and selling, business plans, budgets and unpublished financial statements,  licenses, prices and costs, suppliers and customers; and (iii) information regarding the skills and  compensation of other employees of the Company.                                           9  





 






(j)   Restricted Business.  For all purposes under this Plan, “Restricted Business” shall mean  the design, development, marketing or sales of software, or any other process, system, product, or  service marketed, sold or under development by the Company (and expected to reach market  before the end of the Restricted Period) at the time Executive’s employment with the Company  ends, whether during or after the Term.    (k)   Restricted Territory.  For all purposes under this Plan, “Restricted Territory” shall mean  any state, county, or locality in the United States or around the world in which the Company  conducts business.   (l)   Separation.  For all purposes under this Plan, “Separation” means a “separation from  service,” as defined in the regulations under Section 409A of the Code.   (m)   Solicit.  For all purposes under this Plan, “solicit” shall mean (i) active solicitation of any  Client or Company employee (but not general marketing of a product, service or open position not  targeted at such employee); (ii) the provision of information regarding any Client or Company  employee to any third party where such information could be useful to such third party in  attempting to obtain business from such Client or attempting to hire any such Company employee;  (iii) participation in any meetings, discussions, or other communications with any third party  regarding any Client or Company employee where the purpose or effect of such meeting,  discussion or communication is to obtain business from such Client or employ such Company  employee; and (iv) any other passive use of information about any Client or Company employee  which has the purpose or effect of assisting a third party or causing harm to the business of the  Company.     10.   Miscellaneous Provisions.   (a)   Notice.  Notices and all other communications contemplated by this Plan shall be in writing  and shall be deemed to have been duly given when personally delivered, when delivered by FedEx  with delivery charges prepaid, or when mailed by U.S. registered or certified mail, return receipt  requested and postage prepaid.  In the case of Executive, mailed notices shall be addressed to him  at the home address that he most recently communicated to the Company in writing.  In the case  of the Company, mailed notices shall be addressed to its corporate headquarters, and all notices  shall be directed to the attention of its Secretary.   (b)   Modifications and Waivers.  No provision of this Plan shall be modified, waived or  discharged unless the modification, waiver or discharge is agreed to in writing and signed by  Executive and by an authorized officer of the Company (other than Executive).  No waiver by  either party of any breach of, or of compliance with, any condition or provision of this Plan by the  other party shall be considered a waiver of any other condition or provision or of the same  condition or provision at another time.   (c)   Whole Agreement.  This Plan and the Proprietary Information and Inventions Agreement  supersede and replace any prior agreements, representations or understandings (whether oral or  written and whether express or implied) between Executive and the Company and constitute the  complete agreement between Executive and the Company regarding the subject matter set forth  herein; provided that nothing in this Agreement shall supersede an express promise made by the  Company in Executive’s Offer Letter.                                            10  





 






(d)   Choice of Law and Severability.  This Plan shall be interpreted in accordance with the  laws of the State of New Jersey (except their provisions governing the choice of law).  If any  provision of this Plan becomes or is deemed invalid, illegal or unenforceable in any applicable  jurisdiction by reason of the scope, extent or duration of its coverage, then such provision shall be  deemed amended to the minimum extent necessary to conform to applicable law so as to be valid  and enforceable or, if such provision cannot be so amended without materially altering the  intention of the parties, then such provision shall be stricken and the remainder of this Plan shall  continue in full force and effect.  If any provision of this Plan is rendered illegal by any present or  future statute, law, ordinance or regulation (collectively the “Law”), then such provision shall be  curtailed or limited only to the minimum extent necessary to bring such provision into compliance  with the Law.  All the other terms and provisions of this Plan shall continue in full force and effect  without impairment or limitation.   (e)   No Assignment.  This Plan and all rights and obligations of Executive hereunder are  personal to Executive and may not be transferred or assigned by Executive at any time.  The  Company may assign its rights under this Plan to any entity that assumes the Company’s  obligations hereunder in connection with any sale or transfer of all or a substantial portion of the  Company’s assets to such entity.   (f)   Survival.  The rights and obligations of the parties under the provisions of this Plant  (including without limitation Section 6 shall survive, and remaining binding and enforceable,  notwithstanding the termination of Executive’s employment hereunder or otherwise, to the extent  necessary to preserve the intended benefits of such provision.                                               11